labour law amendments - amazon web...
TRANSCRIPT
LABOUR LAW AMENDMENTS
Briefing to the Parliamentary Portfolio Committee on
Labour
Cape Town
15th
May 2012
Background
• Four bills published on 17th
December 2010:
Labour Relations Amendment Bill, 2010
Basic Conditions of Employment Amendment Bill, 2010
Employment Equity Amendment Bill, 2010
Employment Services Bill, 2010
• Submitted to NEDLAC at same time, together with report on
Regulatory Impact Assessment conducted on the bills during
2010.
2
Background cont.
• Public consultation sessions held in each province during January and
February 2011 with average attendance of approx. 250 representatives
of all stakeholders.
• Comment received from approximately 390 individuals and
organisations. Most comment focussed on issue of labour brokers and
mostly critical of approach in published bill.
• NEDLAC process commenced in January 2011 and concluded in
January 2012.
3
What the proposed Amendments seek to do?
• Respond to the increased informalisation of labour in the labour market;
• Adjust the law to ensure compliance with South Africa’s obligations in terms of international labour standards;
• Ensure that labour legislation gives effect to fundamental Constitutional rights including the right to fair labour practices;
• Enhance the effectiveness of the labour market institutions such as the Labour Court, the CCMA, the Essential Services Committee, the labour inspectorate and bargaining and statutory councils;
• Clarify uncertainties that have arisen from the interpretation and application of the LRA and BCEA in the past decade.
4
What the proposed Amendments seek to do?
• To prevent exploitation of workers and ensure decent work for all workers
as well as to protect the employment relationship,
• Regulate contract work, subcontracting and out- sourcing,
• Address and prohibit certain abusive practices inherent in Temporary
Employment Services (TES).
• Introduce provisions to facilitate unionisation of workers and conclusion of
sectoral collective agreements to cover vulnerable workers in these
different legal relationships and;
• Ensure that the right to permanent employment for workers is not
undermined.
5
What do the bills respond to? Cont.
Some of the abuses in the labour
market that the Bills seek to
address include:
•Labour brokers roll-over contracts of employees thereby making workers
permanent temporary employees;
•Workers employed by a TES earn less than their counterparts employed
by clients doing the same job;
•Workers employed by a TES are often not able to take up their dismissal
cases with the CCMA/Labour Court and not able to enforce decisions
(unclear who the employer is);
•Workers employed by A TES often do not have access to social benefits
(e.g. retirement funds)
6
Temporary Employment Services
Proposed Amendments to section 198 of Labour Relations Act.
•Amendment adds general protections as follows:
i.Employees bringing a claim for which a TES and client are jointly and
severally liable may bring proceedings against either.
ii.A Labour inspector may enforce compliance against TES or client in
terms of BCEA.
iii.A TES may not employ on terms and conditions not permitted by LRA or
BCEA or bargaining council agreement.
iv.Labour Court or arbitrator may now rule on whether a contract between a
TES and a client complies with the LRA, a sectoral determination or
bargaining council agreement. 7
s.198 cont.
New section 198 A – temporary employment services for employees
earning below earnings threshold.
•Protection for employees earning below BCEA threshold (R172,000.00).
•Employees of a TES if employed to perform ‘genuinely temporary work’ –
otherwise deemed to be employees.
•Temporary work defined and limited to 6 months.
•Termination of assignment to avoid deemed employment constitutes a
dismissal and may be challenged.
•Employees may not be treated less favourably than employees who
perform same or similar work.
8
s.198 cont.
New section 198B – fixed term contracts for employees earning
below earnings threshold;
•Ten justifiable reasons for fixing the term of a contract.
•If employed for longer than 6 months, deemed to be employed for an
indefinite period.
•Any renewal or extension to the contract must be in writing and must state
reasons that justifies fixed-term nature of contract.
•Equal treatment applies if employed for longer than 6 months.
•S 198B does not apply to an employer employing less than 10 employees
nor does it apply to an employer who employs less than 50 and who has
been in operation for less than 2 years (flexibility for SMME’s)
9
s.198 cont.
New s 198C –
part‐time employment of employees earning below
threshold:
•New section follows ILO Convention on part-time work (Convention 175,
1994).
•Defines part-time employees and requires no less favourable treatment than
comparable full-time employees.
•Requires employers to give part-time employees access to training and
skills development that is no less favourable than comparable full-timers.
•Employers must provide part-time employees with the same access to
opportunities to apply for vacancies as full-time employees
10
Temporary employment overview
• Temporary employment will be limited to a period not exceeding 6 months and
must be for genuinely temporary work.
• Temporary employees must be treated the same as permanent workers unless
there is a justifiable reason.
• Temporary employees protected against unfair dismissal.
• Temporary employees (and trade unions) may pursue either the TES or the
client in cases of abuse.
• Protection applies to those earning below the BCEA threshold of R172,000.00.
11
Dispute Resolution
• Amendments proposed to approximately 36 sections and sub-
sections of the LRA dealing with operations of CCMA and dispute
resolution.
• Broad thrust of the amendments expand the function and services of
the CCMA, but also streamline dispute resolution and dispute
resolution services.
• Essential services and strikes dealt with under collective bargaining.
12
Dispute Resolution cont.
Significant amendments:
i.CCMA may provide administrative assistance if asked in respect of service, but
employee remains responsible for service (s.115).
ii.Arbitration awards become final and binding and will speed up enforcement.
This will apply to certified arbitration awards issued by bargaining councils as
well (s.143).
iii.Reviews must be heard within 6 months and judgement within 6 weeks,
except in exceptional circumstances (s.145).
iv.Institution of a review does not suspend operation of award unless party
provides security (s.145).
v.CCMA empowered to intervene in disputes when appropriate to secure
resolution in the public interest (s.150).13
Dispute resolution cont.Significant amendments:
vi.Labour Court may only review applications against decisions or rulings of
CCMA in exceptional circumstances. This aims to limit the use of review
applications to delay arbitration outcomes (s.158).
vii.Representation in Labour Court is tightened up to prevent the charging of
fees by labour consultants unless agreed to by the Labour Court (s.161);
viii. A new amendment seeks to create more flexibility for employers in
dealing with dismissal of high earning employees. Access to the CCMA for
high earners is limited without affecting their rights to protection against
unfair dismissal on grounds that are automatically unfair (s.188B);
14
Dispute resolution cont.
xi. The section dealing with operational requirements dismissals is
amended to ensure that a party does not unreasonably refuse to
agree to extend the period for consultation over a proposed
retrenchment (s.189).
15
Collective BargainingAmendments to sections 32 & 49:
i.Bargaining council required to have in place an effective procedure to deal with
applications by non-parties for exemptions;
ii. Applications for exemptions from collective agreements to be dealt with by
bargaining councils within 30 days;
iii. Appeals against decisions relating to exemptions to be dealt with no later
than 30 days after appeal lodged and council to ensure that appeal body able to meet
the time requirement;
iv. Exemptions appeal body to be independent of trade union and employer
organisations;16
Collective Bargaining cont.
v. Opportunity for public comment on collective agreements prior
their publication introduced where parties only sufficiently
representative;
vi. In determining whether parties are sufficiently representative, the
Minister may take into account the extent to which employees in
the sector are employed in non-standard forms of employment;
17
Collective Bargaining cont.
Other significant amendments:
i.Labour Court may order that an administrator be appointed to administer a
trade union or employer’s organisation if that organisation is not functioning in
line with the requirements of the LRA;
ii.The BCEA is amended to make provision for a sectoral determination to
provide adjustments to minimum rates or minimum increases in pay;
iii.Sectoral determinations may be promulgated to cover any workers not
covered by other sector determinations or not covered by agreements entered
into by statutory councils (also BCEA amendment);
iv.The Minister may also determine levels of representativity for the purposes of
organisational rights via a sectoral determination for vulnerable workers in
sectors that are difficult to organise for trade unions.18
Strikes & lock‐outs
Key amendments:
i.Ballots are re-introduced as a requirement for trade unions prior to embarking on strike action;
ii.A majority of those who voted are required to support a strike through a ballot;
iii.Conduct by workers in breach of picketing rules will not enjoy protection against civil legal proceedings (s. 67) & breach by employers may lead to suspension of use of replacement labour (s. 69);
iv.The section dealing with picketing is amended to improve the regulation of picketing by making picketing rules binding on third parties such as landlords of employers (eg. Retail malls).
19
Essential Services
Key amendments:
i.Power extended to ESC to determine minimum services in absence of
an agreement;
ii.Government will also be represented on the ESC;
iii.A new category of ‘public officials exercising authority in the name of
the state’ are included within an essential service if covered in a
minimum service agreement;
20
Compliance & enforcement
Key amendments to the BCEA:
i.Written undertakings become discretionary. Inspectors are no longer required
to issue them (s.68);
ii.Compliance orders may specify date by which employer must make
representations to the Department and the Labour Court (s.69);
iii.DG applications to make compliance orders an order of the court streamlined
to make enforcement more effective (deletion of sections 71 & 72 and
amendment of s.73);
iv.Penalties increased by 200 percent;
v.Sectoral determinations may regulate or prohibit the placement of employees
by temporary employment services and sub-contracting arrangement.
21
Maintaining a balance between regulation & flexibility
Areas that promote flexibility in the amendments:
i.High income earners excluded from provisions relating to temporary
employment and fixed-term contracts;
ii.Guidelines for justifiably different treatment of temporary and fixed-term
contract workers;
iii.Allowance for fixed-term contracts where there are justifiable reasons;
iv.Use of fixed-term contract of 6 months as probation period;
v.Exemption applications from collective agreement and appeals to be dealt with
in 30 days;
vi.Businesses employing less than 10 employees or employing less than 50 and
who has been in operation for less than 2 years excluded from section dealing
with fixed term contracts.22
